DENISON, Circuit Judge
(after stating the facts as above). [1, 2] 1. Unless the award was clearly unreasonable and arbitrary, it was not the duty of the court to set aside or to refuse to confirm. Shoemaker v. U. S., 147 U.S. 282" court="SCOTUS" date_filed="1893-01-16" href="https://app.midpage.ai/document/shoemaker-v-united-states-93491?utm_source=webapp" opinion_id="93491">147 U. S. 282, 293, 13 Sup. Ct. 361, 37 L. Ed. 170" court="SCOTUS" date_filed="1893-01-16" href="https://app.midpage.ai/document/shoemaker-v-united-states-93491?utm_source=webapp" opinion_id="93491">37 L. Ed. 170; Columbia Co. v. Rudolph, 217 U.S. 547" court="SCOTUS" date_filed="1910-05-16" href="https://app.midpage.ai/document/columbia-heights-realty-co-v-rudolph-97258?utm_source=webapp" opinion_id="97258">217 U. S. 547, 560, 30 Sup. Ct. 581, 54 L. Ed. 877" court="SCOTUS" date_filed="1910-05-16" href="https://app.midpage.ai/document/columbia-heights-realty-co-v-rudolph-97258?utm_source=webapp" opinion_id="97258">54 L. Ed. 877, 19 Ann. Cas. 854. This award cannot be so characterized. The sum found was much less than the parcel had cost the owner, and much less than the value assessed by the taxing authorities, but, on the other hand, was far above its value for any presently existing use. It comprised a small parcel of sandy beach, and it was practically — if not absolutely — worthless, save as it had a contingent, prospective value for wharf and dockage purposes. Because of this value in expectancy, the Pennsylvania» Company had bought the property in 1873, and paid $10,000 for it; but, at the end of 40 years, this value was just as prospective as at the beginning. The case was peculiarly appropriate for rejecting both maximum and minimum views, and for fixing an amount which should give due regard to both aspects, and we cannot say that this is not what the commissioners did.
[3] 2. An adjacent part of the total property desired belonged to the Pere Marquette Railroad Company. This parcel was less in acreage and frontage than the one condemned. It was acquired by negotiation preliminary to proposed condemnation, and for $5,000; but the court refused to instruct the commissioners that the price paid was controlling as to the value of the condemned land, and refused to receive evidence based solely on such comparison. The price accepted by an owner to avoid condemnation proceedings may often, if not usually, be so far a matter of compromise that it is wholly inadmissible as bearing on the value of an adjacent parcel; but in this case the price itself appeared, and there was no error in instructing that it was not conclusive, nor in excluding evidence which assumed that the values of the two parcels must be to each other as were their respective areas. The bearing of the Pere Marquette sale upon the value of the Pennsylvania Company’s parcel was, at the best, remote. The elements of value in the former were, at least in one respect, vitally different. It belonged to a railroad which ran into the adjacent city of Grand Haven, and which had a spur track leading into the parcel, and the parcel was presently capable of use for transfer between boat and rail, while the Pennsylvaniá Company had no line of railroad within many *761miles, and it did not appear that there was any railroad or other purchaser, present or prospective, who would have any use whatever for the land. Under these conditions, we cannot assume that the price paid to the Pere Marcpiette would be a controlling comparative measure.
[4] 3. The remaining 600-foot portion of what we assume was the Pennsylvania Company’s unitary parcel — and which portion was not condemned — was a, narrow strip between a platted highway and what, at the time of the plat, had been the water’s edge. At the time of this proceeding, a government harbor improvement, called a revetment, extended along the edge of the highway for nearly the -whole distance in such manner that the strip which, according to the plat, belonged to the Pennsylvania Company, was occupied by the revetment or was outside of it and under water, excepting only where, because of an angle between the revetment and the highway, there was between the two, and belonging to the Pennsylvania Company, a trifling triangular piece of fast land. The case was tried on the theory, adopted by both sides, that if the government had a right to maintain this revetment, it operated to deprive this 600-foot parcel of its right of access to water, and so left no substantial value to be harmed by the taking of the 1,200-i'oot portion. We are not inclined, on our own motion, to question a theory thus acquiesced in by all the parties before the trial court; and so we do not decide whether this revetment was essentially different in character and effect from the ordinary river bank levee. The contention of the landowner was that, in fixing damages, the existence of the revetment shoidd be disregarded, because its erection by the government had been unlawful, and its maintenance was a continuing trespass; and the claim of unlawful erection was to the effect that the structure had been built in 1911, and upon what was at the time fast land, rather than upon submerged land. The requested instructions upon this subject, the refusal of which is relied upon as error, all rested upon the assumption that the building of the revetment had been done at that time and in this manner. The testimony did not require such assumption, even if it tended to support these claims. The proofs are at least equally consistent with the idea that the structure, during practically its entire length across this 600 feet, had been in position without material change for 30 years, and without an objection from the land owner. The testimony regarding the building of a new revetment in 1911 relates — probably, if not certainly — only to that portion in front of the “government basin” and barely touching the 600-foot parcel. Clearly, upon the accepted assumption that a lawfully built structure burdened riparian values, the situation so shown would not justify fixing damages as if the burden were not there.
4. Other questions are raised or suggested by the record; but they are either not argued in the brief of the Pennsylvania Company or seem to be sufficiently covered by wliat has been said.
The judgment is affirmed, without costs.